New Mission

New Mission

My mission is to explore how other countries around the world are dealing with education and special education issues.

I would like to visit and observe different types of schools that have proven records of success, wherever those schools may be. I would like to meet with school directors and administrators, government officials, leaders in the business world, and others who are responsible for implementing education systems or otherwise connected to education to learn more about how education is being addressed in their communities.

If you know of any remarkable schools in other parts of the world (especially special needs schools), please let me know about them. If you know of any education experts who are engaged in remarkable work in this field, please introduce me to them.

Please do not hesitate to share your thoughts or ideas regarding the above. Read more about my mission here.

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Tuesday, December 27, 2011

Top Ten Autism Research Achievements This Year

Autism Speaks has compiled a list of the top ten autism research achievements in 2011, including the South Korea study (which we previously blogged about) and some fascinating breakthroughs:

Wednesday, December 7, 2011

Recently Released OSEP Policy Documents

The U.S. Department of Education is legally obligated to publish, on a quarterly basis, correspondence it has received from individuals regarding interpretation of the IDEA or the federal regulations.  Responses to these inquiries are fielded by the Office of Special Education Programs (OSEP).  Although the responses are not binding law, they can serve as useful policy guidance.  Over the last week, OSEP released the most recent documents.  Below is one example concerning the issue of "maintenance of effort," a principle that we have blogged about in the past, which stands for the idea that a school district "may not reduce its level of expenditures for the education of children with disabilities 'below the level of those expenditures for the preceding fiscal year.'"  The letter addresses the following question: In an instance where a school district fails to pay the amount it was supposed to pay in year 1, under the idea of maintenance of effort, in year 2 do they pay the amount they were supposed to pay in year 1, or the amount they actually paid in year 1?  This document, and others, available at

June 16, 2011

Dr. Bill East, Executive Director
National Association of State Directors of Special Education, Inc.
1800 Diagonal Road, Suite 320
Alexandria, Virginia  22314

Dear Dr. East:

I am writing in response to your letter to me dated February 17, 2011, requesting a written response to your question about the local educational agency (LEA) maintenance of effort (MOE) requirement in 34 CFR §300.203(b). 

In your letter, you ask about the following scenario:
An LEA fails to meet their maintenance of effort.  As a result, the LEA pays the State educational agency (SEA) an amount equal to the shortage.  The SEA then returns the money to the U.S. Department of Education.
Question:  In determining the base amount that the LEA must spend the following year, do they maintain the base amount from the previous year, or reset the base amount to reflect the lower amount actually spent the previous year?
Under section 613(a)(2)(A)(iii) of the Individuals with Disabilities Education Act (IDEA) and 34 CFR §300.203(a), except as provided in 34 CFR §§300.204 and 300.205, funds provided to an LEA under Part B of the IDEA must not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA below the level of those expenditures for the preceding fiscal year. While the IDEA does not contain a specific provision that addresses the circumstance you raise with respect to LEAs[1], the Department must rely on the plain language of the statute and regulation with regard to the level of expenditures, which provide that an LEA may not reduce its level of expenditures for the education of children with disabilities “below the level of those expenditures for the preceding fiscal year.”  See section 613(a)(2)(A)(iii) and 34 CFR §300.203(a).  Under this language, the LEA, in the fiscal year immediately following the fiscal year in which it failed to maintain effort, is obligated to expend no less than the amount it expended in the prior fiscal year for the education of children with disabilities from either local funds only, or from State and local funds.  It is not obligated to expend at least the amount it expended in the last fiscal year for which it met the maintenance of effort requirement.  In other words, each year’s LEA maintenance of effort obligation is based on the actual amount expended in the immediate prior fiscal year.

As your question assumes, in the event that an LEA fails to maintain its required level of effort, the SEA must pay the Department, from non-Federal funds or funds for which accountability to the Federal Government is not required, the difference between the amount of local, or State and local, funds the LEA should have expended and the amount that it did expend.  The SEA may then seek to recoup from the LEA, from non-Federal funds or funds for which accountability to the Federal Government is not required, the amount by which the LEA did not maintain effort.  Whether the SEA seeks recovery of those funds from the LEA is a matter of State discretion. 

Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented.

If you have additional questions, please do not hesitate to contact my office.



                                                            Melody Musgrove, Ed.D.
                                                            Office of Special Education Programs
[1] With respect to State-level maintenance of financial support, the IDEA specifically addresses what level of support the State must maintain in a year following a year in which the State fails to maintain its required level of support.  Section 612(a)(18)(D) provides that the State’s level of support remains the level “that would have been required in the absence of” the failure to maintain support. 

Thursday, December 1, 2011

Differences In How We Educate Low-Income And Higher-Income Students

"Low-income students need extra support and resources to succeed, but in far too many places, policies for assigning teachers and allocating resources are perpetuating the problem rather than solving it."
                                 - Secretary of Education Arne Duncan

Why does this happen?  Why do we send the most inexperienced and lowest-paid teachers to the neighborhoods most in need of help?  The article below addresses the issue.

Sunday, November 20, 2011

Could ABLE Accounts Replace The Need For Special Needs Trusts?

Consider this article which discusses a proposed savings program for individuals with disabilities which would allow such individuals to maintain a savings account in a manner that would not jeopardize government benefits.  A special needs trust would typically serve this function.  An ABLE account, however, might be a cost-effective alternative if the proposed legislation is passed.

Obama Administration To Allocate $150 Million To Improvements In Housing For Individuals With Disabilities

Housing initiatives in New York for individuals with disabilities are underfunded and options are limited.  Those options that are available do not always offer the accommodations that individuals with disabilities may require.  The viability of Section 8 housing and whether it even still exists has been a big question mark.  Under a new initiative, however, the Obama administration is allocating $150 million for improvements to housing initiatives across the country for individuals with disabilities.  Exactly how that money will be divided among the states and when actual changes will take effect remains unclear. 

AMC Theaters Offers Sensory-Friendly and Autism-Friendly Movie Screenings On November 30 In New York: Check Local Listings

Threats Of School Bus Strike Leave Parents In A Lurch

It was anounced on Friday that NYC bus drivers may be striking because of a dispute relating to renewal of a bus contract.  There is currently no definite timeline for when the strike would begin.  The Wall Street Journal story below indicates that, according to city officials, the chances of a strike are uncertain, but, according to the bus drivers union, a strike is likely.  As a precaution, parents receiving bussing from the city should start planning for alternate means of transportation in the event that a strike does happen. 

WSJ article avaialble at:

Tuesday, November 8, 2011

A New Study Addresses The Role Of Epigenetic Factors In Causing Autism

A new study focuses on potential epigenetic causes of autism - i.e., not necessarily defects in the genes themselves, but possible problems with certain proteins that aid in the body's internal communication system. 

For a more detailed article from Autism Speaks, which co-funded the study, see:

For an abstract about the study, see:

ICare4Autism Breakfast With Mayor Of Jerusalem Nir Barkat

This morning I attended a beautiful breakfast presented by ICare4Autism to welcome the mayor of Jerusalem, Nir Barkat.  The purpose of the meeting was to discuss the opening of the Global Autism Center on Mt. Scopus in Israel.  The event was co-chaired by Mr. Howard Jonas and Mr. John Catsimatidis.  The meeting was led by Dr. Joshua Weinstein, the founder and CEO of ICare4Autism and the driving force behind the ambitious project in Jerusalem.  Also in attendance was Dr. Eric Hollander, Director of the Albert Einstein College of Medicine Autism Center, and chair of the ICare4Autism Advisory Council. 

Mayor Barkat discussed the future of this project, his reasons for supporting it, and his efforts to ensure its success.  Dr. Hollander addressed the question of why there has been such an increase in the number of individuals diagnosed with autism and discussed some of the potential causes of the disorder.  The event was well-attended and consisted of people from diverse backgrounds.  

Photos courtesy of ICare4Autism:

ICare4Autism Breakfast with Jerusalem Mayor Nir Barkat on Nov.8, 2011
Partial view of the overwhelming show of participants at the ICare4Autism Breakfast with the participation of Jerusalem Mayor Nir Barkat to discuss the ICare4Autism Global Autism Center
Dr. Joshua Weinstein, Ph.D., M.B.A., Founder & CEO of ICare4Autism speaks at the Breakfast with Jerusalem Mayor Nir Barkat
At the ICare4Autism breakfast honoring Jerusalem Mayor Nir Barkat, Dr. Joshua Weinstein, Founder & CEO of ICare4Autism describes the Global Autism Center project. Seated to the right is Jerusalem Mayor Nir Barkat, Host J. Morton Davis, DH Blair Founder and Chairman, and Event Co-Chair John Catsimatidis, owner and CEO of Red Apple Group and Gristedes Foods

Wednesday, November 2, 2011

Man With Autism Faces Child Pornography Charges From Stint In The Marines

The following story may kindle memories of an Arrested Development episode where one character who appears intellectually impaired enlists in the army.  This case is different, however, in that it could involve real-life consequences for a man with autism who enlisted in the Marines and is facing charges of child pornography. 

For more of the story, Disability Scoop directs you to:

To view the Disability Scoop website, visit:

Alaska Decision Regarding Parental Cooperation As A Prerequisite For Relief

In a decision filed yesterday, the U.S. Court of Appeals for the Ninth Circuit considered the role of parental participation as it relates to a school district's responsibility to fulfill its obligations to a child with a disability under the IDEA and federal regulations.  Previously, the district court had ruled in favor of the school district, saying that the district did not deny the child a FAPE because the parents failed to cooperate in the preparation of a new IEP.  On appeal, the ninth circuit disagreed with that conclusion and stated:
Neither the IDEA nor its implementing regulations qualified any duty imposed on a state or local educational agency as contingent upon parental cooperation.  Further, the [Anchorage School District] does not cite any binding case law, and we are not aware of any, that supports such a proposition.
As a result, the ninth circuit vacated the district's order and granted the parents reimbursement for tutoring expenses in math and reading.  The court also suggested that the parents would recover attorney fees as well. 

The decision is significant because, in reimbursement cases, parent cooperation is sometimes thought of as one of three prongs in the analysis as to whether parents are entitled to reimbursement.  This decision seems to say that a school district should not be able to use that as an excuse.  It should also be noted that the ninth circuit chose not to remand this to the district court to reconsider the issue of FAPE, instead relying on the initial hearing officer's "thorough and careful analysis" which was sufficient to determine, as a matter of law, that FAPE had not been provided.  The ninth circuit said, "whether [the student] received a FAPE is ultimately a legal question becasue the [school district] challenges the hearing officer's legal conclusions."  I think some would argue that whether FAPE was provided is a factual question, taking into account what the child requires and what the district provided.  But there you have it in slightly different terms from the ninth circuit. 

All in all a good decision for parents.

Tuesday, November 1, 2011

Governor Cuomo Enacts Autism Legislation Reform

I just received the following message from the advocacy arm of Autism Speaks:

November 1, 2011
Dear NY:
Thank you for all of your calls and e-mails over the years, particularly this past summer to gain legislative passage and win the support of Governor Cuomo for A.8512, the autism insurance reform bill. Your advocacy truly played a great part in the process.

We are excited to announce that your bill has now become law! Moments ago, Governor Cuomo signed the bill making New York the 29th state to take important steps to end autism insurance discrimination.

Now it is time to thank him and we hope that you will do that by sending him an email as well as writing him a brief note of thanks on his Facebook page.
Here’s How You Can Help!
1. Send a quick email to Governor Cuomo expressing your gratitude for enacting autism insurance reform. We get you started with the email here, but make sure you take the time to make your note personal.
2. Ask your friends on Facebook to spread the word and leave Governor Cuomo a note of thanks on his Facebook page here.
To learn more about the legislation - when it will become effective and what it means for you, please visit York.
Thank you again for all of your hard work. There is no doubt that your calls, your emails and your visits to the Capitol throughout this long process were key in making this day a reality for all who live in New York.

Friday, October 28, 2011

Alabama Law Known As "Section 28" Requires Schools To Report Students' Immigration Status To The State

Today's NY Times highlights a provision of Alabama law, known as Section 28, which requires schools to record the immigration status of incoming students and forward that information to the state.  The story is just one piece of the broader debate concerning immigration law and immigration reform.

Although it's not clear how such information obtained by schools would actually be used, one can imagine some of the consequences it might have.  It could lead to some students whose families have questionable immigration status being denied entry to our schools.  On one side of the debate, if there are students in our educational system whose parents are in the country illegally, with the financial straits and lack of resources plaguing our schools nationally, why should those parents be rewarded with the guarantee of a free public education for their kids?  Taking it a step further, these students are eating up precious funding and resources that otherwise would benefit children whose parents are legal.  You could see how this might affect special education as well - think of the dollars that could be put toward special ed if that money wasn't funding the education of children whose parents were never legally admitted to the U.S. 

On the other side, those children whose parents came here illegally, did not take part in that decision and shouldn't be punished for their parents' actions.  First of all, those children who were born in the U.S. are American citizens anyway, regardless of their parents' immigration status, and therefore are entitled to the same rights as any other citizen.  What about those children who were not born here but were brought over by their parents illegally?  I am not an expert in immigration law, but the NY Times article seems to suggest that a 1982 U.S. Supreme Court decision addressing that issue held that states could not withhold funding for or deny entry to children of illegal immigrants because those kids were not responsible for their immigration status. 

The immigration debate is a heated one, for sure.  How Section 28, specifically, will affect education locally and in other states remains to be seen.  If nothing else, this story demonstrates the tension that exists between federal and state government on the issue of immigration, each trying to influence legislation that could have significant ramifications for the country as a whole. 

Tuesday, October 25, 2011

Bloomberg Says No To More Wheelchair Accessible Taxis

See the below article from Disability Scoop about Mayor Bloomberg being against making more wheelchair-accessible taxis:

He cites three reasons: (1) taxis will have lower suspension and thus people won't want to ride in them; and (2) the wider gap between passenger seat and divider would lead to injuries or just plain inconvenience; and (3) too expensive.  Frankly, I don't know anything about suspension, don't know that I would recognize lower suspension if I saw it, and don't know that it would dissuade me from getting in a taxi for 6 blocks.  Next - people are going to get hurt because of the wider gap?  Couldn't they just be extra mindful not to stand up or get out of their seats while the vehicle is moving, or put on a seatbelt?  I guess the final reason - money - is always a legitimate consideration when it comes to government spending.  I don't know the numbers but there's got to be a way to make it cost-effective.  There isn't?  Well then maybe the mayor can cover the difference.  He pledged to go into his pockets once already this year - perhaps he'd be willing to do it again.

Monday, October 24, 2011

A Fascinating Video About The Impact Of The iPad On Children With Autism

As Steve Jobs' legacy lives on, parents of children with autism and special education teachers continue to discover and appreciate the powers of the iPad for breaking communication barriers and getting through to their kids. Check out the fascinating 60 Minutes segment below:

NYS Board Of Regents Is Busy, Busy, Busy

Anit-cheating measures.  Computer-based exam testing.  Waivers for proficiency requirements.  Support for the Dream Act.  Read more about the Board of Regent's involvement in these issues in the following NY Times article:

Proposed Changes To No Child Left Behind (AKA "Elementary And Secondary Education Act (ESEA)"

The Senate education committee has approved a bill that would involve significant changes to the current version of the No Child Left Behind (NCLB) law.  The bill proposes loosening accountability requirements and absolving states of having to set annual, measurable goals.  Has accountability become less of a priority in striving for academic success?  No, not really.  My best guess is that people in Congress are disillusioned by the previous failure to meet the accountability standards in the last version of the law and, this time around, they're feeling a bit gun-shy.  The bill would also reduce the federal government's role in education, including consolidating a number of federal programs. 

Read more about it, including the implications for President Obama's waiver plan, by following these links:

Wednesday, October 19, 2011

Vote On The Isakson Amendment

Please see the below message that I received today from the Council Of Parent Attorneys and Advocates (COPAA):

Council of Parent Attorneys and Advocates, Inc.

The Council of Parent Attorneys and Advocates, a national membership whose primary goal is to secure high quality educational services for children with disabilities, urges a NO vote on the Isakson Amendment because students with disabilities deserve access to the same education as other students! (see letter attached to Chairman Harkin and Ranking Member Enzi)

Senator Isakson (R-GA) today offered an amendment that seeks to lift the cap on the 1% and 2% regulations respectively. As a result, states would be allowed to administer different assessments - either an alternate assessment based on alternate academic achievement standards or an alternate assessment based on modified academic achievement standards - to any number of, or possibly all, students with disabilities.

Neither the data, which indicates that the students who benefit from an alternate assessment are far less than one percent, nor best practice would support placing more students into alternate assessments.

The Isakson amendment would remove the limits on how many students with disabilities can be counted as making adequate results or sufficient progress using less challenging systems of standards and assessments. This amendment would allow schools to take millions of students with disabilities off track for a regular high school diploma as early as 3rd grade when assessment decisions are made in schools, relegating them to lower career and college expectations—simply because they receive special education services.

The Isakson amendment INCORRECTLY promotes that most students with disabilities can’t learn or achieve when most students with disabilities are able to learn and achieve, just like all other students, when provided appropriate services and supports.

The Isakson amendment promotes abuse and overuse of alternate assessments by allowing any student with a disability to be tested through these assessments.

The Isakson amendment will turn back the clock on the advances made in educating students with disabilities over the past 10 years.

Too many parents and students are not told, or may not fully understand, that when a student with a disability takes a different assessment than a student without a disability, there is no way to compare their performance, no way to accurately measure achievement gaps, and no way to know how well they have grasped the grade-level content. They are no longer on track for a high school diploma.

CALL TODAY!!. Call your Senators 202-224-3121 (TTY 202-225-1904). If you do not know who they are, you can look them up at Ask for the staff member who handles education or disability. Tell them to vote NO on the Isakson Amendment

Send an email - You can email your Senators through a Web Form available on the Senate website,
Want to make a bigger impact? Personalize your message.
Members of Congress pay particular attention to personalized messages from their constituents. Include a personal story about how your child has had academic success and has achieved in the regular classroom with his/her peers due to high expectations and appropriate services and support.

Vote NO on Isakson amendment to lift caps on alternate assessments for students with disabilities

New Part C Regulations Affecting Infants And Toddlers With Disabilities

As you may know, the U.S. Department of Education published new regulations relating to Part C of the IDEA affecting infants and toddlers with disabilities.  The Council for Exceptional Children, its Division of Early Childhood, and the IDEA Infant Toddler Coordinators Association have together produced a side-by-side summary of the new regulations compared to the old regulations from 1999.  That comparison can be accessed at:

For the Council for Exceptional Children blog, visit:

Sunday, October 16, 2011

REMINDER: Free Informational Workshop About The Turning-Five Process

There is still time to sign up for the free informational workshop being presented by Sarah Birnbaum this Wednesday evening.  This lecture is a valuable primer for parents of children with special needs in preschool or transitioning from preschool to kindergarten. 

Kindergarten: The Great Beyond; Or, "You Mean I'm Not Done Yet?"

Date: Wednesday, October 19, 6:00-8:00pm

Location: Bankstreet College of Education

610 West 112th Street, main floor auditorium

Monday, October 10, 2011

How Do You Teach Character?

I meant to post this article when it first appeared in The New York Times but, when I stumbled upon it again this weekend, I realized that I never did.  So here it is now.  This is an interesting, thought-provoking article about what qualities we need to instill in our young students to prepare them for success in life.  Are there qualities that you think are tied to success?  This article highlights a few, with a heavy emphasis on grit and resiliency.  

Sunday, October 9, 2011

Classroom Observations

There are times when you may want to arrange for a classroom observation at your child's school.  Let's take the case where you are working with a private psychologist who wants to observe your child in his regular classroom setting in order to develop a complete understanding of your child's academic ability and the way he/she functions in a real-life academic setting.  Does the school district have an obligation to allow that kind of observation? 

In Appeal No. 11-074, SRO Stephanie Deyoe considered this question.  (For those of you having trouble keeping up with yet another SRO change, you are not alone.)  The basic facts of this case are that the parents who had a child with autism and ADHD wanted the private psychologist they had hired to conduct a classroom observation at the child's public school.  The school had denied the psychologist access, stating that it would cause too much of a disruption and that there was a concern about student confidentiality and safety.  The SRO agreed with the IHO who had ruled in favor of the parents.  Although a school district may impose certain requirements to ensure confidentiality and safety of the students, it cannot prohibit a private psychologist from entering the school to observe the child when such an observation is meant to assess the child's needs and abilities, and is necessary for a complete evaluation.  Although the IDEA does not clearly set out this right, the SRO pointed to letters from the Office of Special Education Programs which support the right to such an observation.  The district's informal policy of allowing district personnel to perform observations but preventing private psychologists from doing so was rejected. 

A recent federal case from the U.S. District Court of New Jersey, Disability Rights of N.J. v. New Jersey Department of Education, also considered the issue of classroom observations but in a slightly different context.  Here, the issue was a class action lawsuit alleging that schools across the state were not in compliance with certain requirements under the IDEA.  The court said that under the Federal Rules of Civil Procedure, during discovery a party has a right to enter onto property, which could include school grounds, so that the requesting party may conduct an inspection, which could include classroom observations.  The Court ultimately struck down the request for classroom observations for a number of reasons, including: (a) the defendants in this case were the state-level educational authorities like the NJ Department of Education and the issues of denial of FAPE and least restrictive environment should have been directed against the local school district through the impartial hearing process; (b) the plaintiffs were not sufficiently specific about how the observations were going to be conducted; and (c) even though the judges could have given the plaintiffs some leeway, there would have been an enormous burden on the schools and the plaintiffs' attorneys did not do a good enough job connecting the dots for the judges as to why this was so important.  The takeaway message here: if you're going to bring a class action and ask the court to allow discovery that would put extreme demands on the district in terms of time, personnel, and money - you better demonstrate a good reason for doing it.

Free Informational Workshop About The Turning-Five Process

If you have a child who is in preschool or heading to kindergarten, there is a very useful informational workshop coming up that you should not miss.  I have attended this workshop in the past and it offers a wealth of information (in just two hours) that any parent going through the special education process should not be without.  See below for details:

Kindergarten: The Great Beyond
Does your child receive preschool special education services?
Are you heading to kindergarten in the fall of 2012?
What kind of elementary program will be right for your child?
What are your rights and options?
Hear a free presentation by Sarah Birnbaum of New York Special Needs Support on how to:
Learn your educational options, public and private
Obtain the best evaluations and guidance
Find an appropriate kindergarten program
Understand your legal rights
Get through the Turning 5 process and create an IEP
Date: Wednesday, October 19, 6:00-8:00 p.m.
Location: Bank Street College of Education
                 610 West 112th Street
                 Main floor auditorium

More info at

Thursday, September 22, 2011

Alaska Court Rules On Reimbursement For Private Evaluation and Tutoring

In J.P. and L.P. v. Anchorage School District, a September 16, 2011 case decided by the Alaska Supreme Court, the court considered the issue of whether parents are entitled to reimbursement for private testing and tutoring where the school district failed to conduct its own testing within the prescribed timeline and subsequently determined the child to be ineligible for special education and related services. 

The parents in this case had asked the school district to conduct testing to determine if their child had a disability.  The district did not test within 45 school days as mandated by Alaska law.  The parents pursued their own independent testing for which they expected reimbursement from the district and implemented private tutoring services for which they also sought reimbursement. 

An impartial hearing officer determined based on the evidence presented that the child was performing adequately in a general education classroom and did not need tutoring to access the curriculum, but granted some reimbursement anyway because of the district's delays.  An appellate court reversed the award of reimbursement for tutoring, and the Supreme Court agreed, on the grounds that in order to be eligible for reimbursement for services, you have to first be eligible for services.  The IDEA requires not only that a person have a disability but also that the disability impairs his/her ability to derive educational benefit.

The Supreme Court's ruling on reimbursment for the private evaluation, however, was in favor of the parent.  A parents' right to have his/her child evaluated has nothing to do with whether the child is actually found to have a disability.  The whole point of the evaluation, based on the school district's "child find" responsibility, is to determine whether a disability exists.  Therefore, the court awarded reimbursement and, citing to Forest Grove, explained that this merely requires the district to pay an expense that they were required to pay all along. 

Wednesday, September 14, 2011

Home Health Care Company Agrees To Pay $150 Million To Settle Allegations Of Defrauding Medicaid

According to Disability Scoop, a home health care company has agreed to pay $150 Million to make allegations of Medicaid fraud disappear.  How does it happen that service providers get paid for services that were never delivered?  One would hope that Medicaid's payments department would have a process in place that is a little more sophisticated than the honor system.

Tuesday, September 13, 2011

New Regulations Under Part C Of The IDEA

The U.S. Department of Education has released new regulations under Part C of the IDEA affecting children between the ages of birth and three years old. 

Check out the press release here:

Former U.S. Secretary of Education Comments On The Status Of No Child Left Behind

Words from former U.S. Secretary of Education Margaret Spellings on the state of No Child Left Behind and Secretary Arne Duncan's waivers:

Visit for breaking news, world news, and news about the economy

Read more at:

Our 100th Blog Entry

Thanks to those who follow the blog and have reached out with their feedback.  This marks the firm's 100th blog entry and we go straight to D.H. v. Lowndes County School District, a September 9, 2011 decision from a Georgia federal district court...

How strictly does a court construe procedural requirements against a parent pursuing an IDEA claim against a school district?  Well, in D.H., the court construed some procedural requirements loosely and in favor of the parent.  One issue related to the timing of filing a complaint.  If a student has moved out of one school district and into a new one, could the parents still bring the claim if the student is no longer attending school in the district the parents are suing?  Surprisingly, some courts have held that parents would be barred in this type of situation.  This makes little sense since from a "notice" standpoint because the IDEA has a 10-day notice requirement which contemplates that parents will file for an impartial hearing after the child has already enrolled in a private school.  The Georgia court ruled on the issue in favor of the parents and explained as follows:
"IDEA is remedial in nature. Disabled students are guaranteed an appropriate public school education, and if a school fails to provide this education, IDEA enables these students to be compensated for the lack of educational opportunities. The opportunity to recover for a school district's violations should not be limited to the time when the student is enrolled in the school district."
The court also considered whether failing to file a complaint before the child leaves the district constitutes a "failure to exhaust administrative remedies."  The court stated:
"In this case, Plaintiffs allegedly attempted contact the District numerous times to schedule an IEP meeting pursuant to IDEA procedures. The frustration of repeated failed attempts to contact the District eventually intensified to such a degree that Plaintiffs felt compelled take immediate action and move D.H. to a new school. While the exact reason behind Plaintiffs' failure to file a due process complaint before transferring D.H. is unclear, what is clear is that if Plaintiffs allegations against the District are true, the District should not be rewarded for its avoidance techniques and its failure to respond to Plaintiffs' concerns."
The main point, the court said, is that the exhaustion requirement is not meant to be applied absolutely where doing so would lead to an unjust result and it is important to remember that the purpose of the IDEA is to compensate students who have received an inadequate education.

Monday, September 12, 2011

The "Severe Discrepancy Model"

In Michael P. v. Hawaii Department of Education, a case decided September 8, 2011, the 9th Circuit considered the relevance of a concept known as the "severe discrepancy model."  This concept relates to classifiying a student as having a "learning disability."  Prior to the reauthorization of the IDEA in 2004, school districts would ask whether testing results demonstrated a severe discrepancy between intelligence and achievement.  If such a discrepancy existed, the child would be classified as learning disabled.  But if a child's scores reflected low intelligence, school districts would not classify that child as learning disabled and many students with low IQ's would be under-identified.  In 2004, Congress mandated that the severe discrepancy could not be used as the sole criterion for determining if someone had a learning disability. 

Hawaii was slow to revise its state laws to match the changes in federal law.  In this case, the Hawaii DOE relied solely on the severe discrepancy model and the Hawaii district court did not fault them for it.  The 9th circuit, however, reversed the decision and remanded back to the district court.  Upon remand, the district court will have to apply the appropriate standard, which encourages school district to consider a student's ability to meet grade-level and age-level expectations.

Tuesday, September 6, 2011

Eastern District of Pennsylvania Places Limitations On Pendency

In J.E. v. Boyertown Area School District, a September 1, 2011 decision from the Eastern District of Pennsylvania, the court held that the doctrine of pendency does not apply during the time that a case is being appealed from a federal district court to a circuit court of appeals.  The court first cited to a 3rd circuit case (to which Pennsylvania belongs),  Ringwood Board of Education v. K.H.J., which held that pendency does apply throughout the entire judicial process including circuit court appeals.  But, the court then cited to cases from the 6th circuit, D.C. circuit, and a 3rd circuit district court which held that pendency does not continue during a federal appeal and the court ultimately agreed.  The court did not convincingly explain why the Ringwood case, which presumably should have been persuasive, should not be followed.  

The court reasoned that if a district court has ruled on the case, there is no longer a threat of a "unilateral decision by school authorities" and, therefore, the protection of pendency is not necessary.  The court adopted strict construction of the term "district court" in one provision of the IDEA to the exclusion of circuit courts.  In the process, the court may have lost sight of the spirit of the law - to protect children in exactly this kind of circumstance.  Children were meant to be protected from being placed in an inappropriate setting until a final decision on the case could be reached to show that the school district's actions were justified. 

Here is a short excerpt from the decision:

"However, to require that the stay-put provision applies during a federal appeal could yield absurd results.  Parents could continue to appeal to the Third Circuit and then the Supreme Court forcing a school district to reimburse private school tuition where multiple levels of review have found that the IEP offered to the child provides a FAPE.  Further, this will discourage school officials from agreeing to provide support for private placement for fear that this leaves them required to pay until the child graduates regardless of changed circumstances because all the parents would have to do is continue to appeal."

Friday, September 2, 2011

How Much Money Should School Districts Have To Contribute Toward Special Education

In the world of special education funding there is a concept known as "maintenance of effort" which, in my limited understanding, means something to the effect of "If a school spends $10 million dollars on special education in the year 2011, it must spend at least $10 million on special education in 2012."  I guess this presumes that the cost of special education and the number of kids in need of special education are both rising.  What about accounting for the children who are being mainstreamed?  Is it possible that in a given year a school district's special education expenses would be lower than the previous year's? 

According to Disability Scoop, school districts who fail to fulfill their "maintenance of effort" obligation may have found a loophole.  In some instances defaulting districts are not being held to the $$ amount they were supposed to pay in the previous year, but rather they are expected to pay the number they actually paid in that previous year.  Shouldn't there be stricter consequences for districts who fail to live up to their obligations? 

I guess it's a balancing test.  Each school district must do an analysis that looks something like this - "On the one hand we may lose federal funding for the year that we default on our obligation.  On the other hand, if we default this year, then next year we will have to pay less than what would otherwise have been required." 

Mother Sues Doctors For Birth Of Disabled Child

To what extent should a medical office be liable for failing to warn a parent during pregnancy that the child may be disabled?  In the story referred to below, a mother is suing her doctor's office and the ultrasound facilities for failing to bring to her attention that the child would be physically disabled.  Her son was born with one leg and no arms.  The mother says she would have had an abortion if she had known.  Despite seven ultrasounds having been conducted, the issue of disability was not addressed.

Wednesday, August 31, 2011

Online Bachelor's Degree For Students With Disabilities

Disability Scoop writes about a new program aimed to offer online bachelor's degrees to students with autism and other special needs.  In addition to offering individualized supports academically, the program promises to provide each student a behavior analyst and an opportunity to hone important life skills.  The article refers to the program as a "unique approach" but it's really the same approach that has been advocated for for years - tailoring the curriculum to meet the specific, unique needs of each and every student.  This continues to be the mantra today but it seems we still have a way to go to meet this goal.   

Read the article at:

Tuesday, August 30, 2011

Solving The School Budget Crisis

Interesting New York Times article regarding private entities supplying much needed funds to public schools.  This story and the school conduct described therein raises questions about the presence of discrimination based on socioeconomic status and what it means for a child to be entitled to a free and appropriate public education:

Fixing The Way We Teach

Thought-provoking article about our tendency to teach what we've always taught just because we've always taught it.  Shouldn't school be an exercise in relevant and practical skills and knowledge with real-world, real-life application?  When was the last time you used Calculus in your day-to-day activities. 

Read the New York Times article here:

For more on this point and an interesting (and quick) read, check out The Saber-Tooth Curriculum by J. Abner Peddiwell.  It's an old but still very relevant to today's debate. 

Friday, August 19, 2011

Special Education Workshop at Ohel Simcha in New Jersey

I will be presenting a special education workshop about navigating the legal process and how to get the services that your child needs on August 24, 2011 in New Jersey (see below).  Topics to be discussed include a parent's rights under the IDEA and other applicable laws; how to go about dealing with your school system to obtain tutoring, occupational therapy, physical therapy, and speech services as well as tuition funding; and what legal action to pursue when interactions with the school district have reached an impasse.   

Ohel Simcha (Park Avenue Shul)
295 Park Avenue,
Long Branch, NJ 07740
When: Wednesday, August 24th at 1:00 pm
To RSVP or for more information contact Danielle Siegal at or call (646) 845-7462

Thursday, August 4, 2011

Mayor Bloomberg Announces Plans To Contribute $30 Million Of His Own Money To Help Disadvantaged Youth In New York City

The New York Times reports that Mayor Bloomberg will be contributing $30 million of his own money to help disadvantaged and underserved children in New York City who are struggling economically and not benefiting as much as they should from education.  The program calls for a total of $130 million and will aim to change the way the government conducts itself with respect to these children.

Wednesday, August 3, 2011

Misappropriation Of Funds At YAI Provides Insight Into Some Of New York's Medicaid Woes

A previous entry on this blog dated July 7, 2011 focused on the 2011 Medicaid rankings and pointed out that NY seems to be spending lots of money on its state-run programs but not getting the type of bang-for-your-buck one might expect.  Well, the following article sheds some light on at least one example of why that is the case.  The New York Times story exposes the misappropriations of funds by two prominent individuals who ran the well-known organization called YAI.  The story details how the chief executives of the organization were using state-provided funds for purely personal purposes such as fancy cars and their children's education. 

Read the full article at:

Tuesday, August 2, 2011

Eastern District of New York Affirms Award Of Tuition Reimbursement For Rebecca School In Absence of SRO Decision

In New York City Department of Education v. V.S., a July 29, 2011 decision from the Eastern District of New York (EDNY), Judge John Gleeson affirmed an impartial hearing officer's award of tuition reimbursement for the Rebecca School in the absence of an SRO decision.  Typically, when the DOE appeals from an IHO's decision, the case goes to the State Review Officer who then rules on the merits of the case and, if that decision again favors the parents and the DOE wishes to appeal further, the case proceeds to federal or state court.  Here, however, the SRO had decided not to rule on the merits of the case at all because he believed doing so would be pointless, leaving the district court in an interesting position.

The case involved a claim for tuition reimbursement for the 2009-2010 school year for a young boy with autism whose parents enrolled him in the Rebecca School, a school in Manhattan for children with autism.  The IHO had determined that the IEP and public school recommendation were not appropriate, and that the Rebecca School was appropriate.  The parents had previously succeeded in their claim for the 2008-2009 school year and, under pendency, the DOE was ordered to pay the Rebecca School tuition for the 2009-2010 school year until a final decision on the merits for that year was reached.  By the time the SRO finally addressed the appeal, it was July 7, 2010 which meant that the 2009-2010 school year had ended and the DOE had been on the hook for the full amount of the tuition...regardless of the final outcome of the actual case.  In light of that, the SRO concluded that the case was moot and, therefore, chose not to rule on the merits of the case.  However, he neglected the fact that his decision would have pendency implications for the future.

Although the EDNY could have sent the case back to the SRO for a determination, Judge Gleeson concluded that he had authority to rule on the merits even in the absence of an SRO decision and decided to render his own decision in the interest of an "efficient administration of justice."  Judge Gleeson explained that the case was not moot because of the pendency implications going forward.  He deferred to the IHO's decision and concluded that the DOE failed to offer an appropriate program and placement, and the Rebecca School was appropriate to meet the child's needs.  Judge Gleeson noted that the parents had signed a tuition contract prior to the child's annual review and that the parents had made a deposit which was only partially refundable.  However, he did not feel that these points damaged the parents' reimbursement claim because the parents had otherwise cooperated in the process.  The DOE argued, as it routinely does for cases involving the Rebeeca School and other for-profit institutions, that for-profit schools were not meant to be covered by the tuition reimbursement provisions of the IDEA.  Judge Gleeson rejected this argument and explained that Section 1415 of the IDEA confers "broad authority on federal courts to craft remedies necessary to ensure that a child's right to a free appropriate public education is complete."  He cited to several Supreme Court decisions - Burlington, Carter, Forest Grove - which support the point of the courts having broad authority. 

In sum, Judge Gleeson agreed with the IHO's determination in favor of the parents on the merits.  As a result, the Rebecca School will continue to be the child's last-agreed-upon placement, unless the case is further appealed and a different conclusion on the merits is reached.  

Thursday, July 21, 2011

Reimbursement For Religious Portion Of Your Child's Tuition

An issue that comes up in many of our cases is, when a child attends a parochial school or a program with non-secular aspects, may a parent be reimbursed for the non-secular portion of that program.  Historically, this issue has been viewed through a prism of separation of church and state according to the Establishment Clause of the U.S. Constitution.  The argument made by school districts is something like, in very crude form, "It would be wrong for the government to pay the school for the religious portion of their program because that would mean we are promoting that religion and the Constitution prohibits that type of entanglement."  The district uses this reasoning to try to reduce the amount that parents are able to recover.  But is this type of behavior really unconsitutional? 

Recent case law supports the notion that it is not unconstitutional.  That is, parents who were denied an appropriate program and placement by the school district, and chose to enroll their child in an appropriate parochial school, may be entitled to reimbursement for the entire amount including the religious portion.  If you think about it, reimbursing parents for the cost of a parochial program does not necessarily say anything about the government's view of that program.  It is not an endorsement of that school's religion.  It simply means that the school district failed to fulfill its obligations to the child, the parent chose a private school capable of addressing the child's needs, and now the school has to pay for it.  The fact that the private school has a religious component is a side issue because it was the parent's choice to put his/her money there, not the government's. 

This issue had been addressed by courts in the past but, for some reason, parents continued to have difficulty.  Recently, however, some judges seem to be adopting this reasoning which could perhaps be the sign of a new trend. 

Home-Based Instruction And Whether An Automatic Decrease In Hours Of Service Is Appropriate

I wanted to comment on an issue that arose in a case I handled recently.  I think it exemplifies the type of difficulties a parent may sometimes have with a school district when the district is firm in taking a certain position that the parent, instinctively, knows cannot possibly be justified.  In short, the case involved a young child with autism who was in need of an appropriate preschool program.  Initially, the CPSE had convened and been relatively generous with the family - recommending full-time special education instruction along with an intensive diet of related services.  At some point in the case, it became clear that the child's medical needs required home-based instruction and the parent provided supporting medical documentation.  Despite participation from various professionals who had worked with and intimately understood the child's needs, the CPSE essentially cut those services in half.  The district stated that, if it was a home-based program, it was constrained by a maximum number of hours that it simply could not exceed. 

I don't know what legal support they thought they had for this position and I can tell you that they did not provide any such legal support to the parent.  All the professionals involved in this child's life agreed and painstakingly explained that the child required intensive services in order to have any chance of making progress, and the reduced level proposed by the district would not be anywhere near what was required.  To make a long story short, it took the threat of an impartial hearing to compel the school district to provide the amount of hours that the child actually needed.  No impartial hearing was necessary because the matter was resolved once our office intervened and reminded the district that its position was not supported by the law.  This type of situation is not uncommon and parents should be aware of what the law does and does not say so that they can properly deal with school districts in situations of this kind.   

Autism Insurance Reform Case In Michigan

More and more states have been enacting autism insurance legislation reforms to require insurance companies to cover the costs of certain autism-related therapies such as Applied Behavioral Analysis (ABA) therapy.  According to Autism Votes (, an initiative run by Autism Speaks, Michigan may have such a bill pending but has not yet enacted such legislation.  Break to a recent federal court case in Detroit where a judge has allowed a class action to proceed against Blue Cross Blue Shield of Michigan with respect to a claim that ABA therapy was denied by the insurance company on the grounds that it is investigative/experimental despite the substantial scientific research behind it.  I don't know how many people carry Blue Cross Blue Shield, but given the high incidence of autism nationwide, the number of plaintiffs included in this class could be very substantial.  If this case goes forward, I imagine it will involve expert testimony about the science behind the efficacy of ABA therapy, and could be the push Michigan needs to pass the legislation reforms.

Thursday, July 7, 2011

2011 Medicaid Rankings

United Cerebral Palsy (UCP), an organization that educates, advocates, and provides support services for individuals with various disabilities, recently released its 2011 Medicaid rankings for the 50 states in the U.S. and the District of Columbia.  The report estimates that Medicaid spending amounted to $37.3 billion in 2009 for the 635,000 individuals with intellectual and developmental disabilities that it served.  New York's position in these rankings may be of particular interest to some people in light of the numerous difficulties that individuals in New York have encountered recently when it comes to finding appropriate housing and services.  Group home closures, longer waiting lists, and budget cuts are partially responsible for NY's recent problems.  A closer look at the UCP's findings may shed light on the root of some of these problems and how we match up to other states. 

These rankings were developed through a process of collecting data that involved assembling statistics from all 50 states and D.C.; reviewing information from numerous governmental non-profit and advocacy organizations; and consulting with Medicaid and disability experts around the country.   A weighted grid was used to assign points to each state based on its performance in a number of categories such as promoting independence, tracking quality and safety, keeping families together, promoting productivity, and reaching those in need.  These categories were further broken down into specific measurable criteria - i.e. subcategories (such as % receiving home and community based services; % living in resident settings with 1-3 people; family support services; etc.  The study is based on data from 2009, the most recent available, and focuses not on all individuals with disabilities but only those with intellectual or developmental disabilities.  It emphasized the importance of including these individuals within the community (not in isolated setttings such as large state institutions) and assigned the highest weight to those criteria that it felt were most closely related to inclusion. 

Overall New York was ranked #17 which by itself doesn't say a ton.  In terms of allocating resources to those in the community, New York was ranked #43.  In terms of supporting individuals in the community and home-like settings, New York ranked #36.  For keeping families together through familiy support, New York ranked high at #10.  In terms of supporting meaningful work, New York ranked at number #36.
New York is one of only 9 states that report more than 2,000 residents living in large public or private institutions.  New York is not on the list of states who have at least 95% of individuals served living in home-like settings (meaning, at home, in their family's home, or in setting with three or fewer residents).  New York is not on the list of states who reduced the number of Americans living in large institutions by 20% or more from 2005 to 2009. 

Other noteworthy points:

- New York is among the top few states when it comes to the number of residents in "congregate care" living situations of 1-3 people and it is also among the top states when it comes to the number of residents in congregate care living situations of 16+ people.  This suggests to me that while it offers a lot of people smaller living arragements, improvement is needed with respect to those in larger homes. 

- New York has a high number of large state facilities.  Only Texas has more.

- New York is in the top 10 when it comes to overall spending for family support services - $56 million - but almost every state spends more money per family.  This has to do with the sheer number of NY families who need family support services - a total of 41,571 families (highest in the country with the exception of California which has roughly 81,000 such families). 

- New York has a waiting list of roughly 4,400 people for residential services.  Only 5 states have longer wait lists. 

- If you look at total expenditures, New York is the highest of all states.  If we're spending so much money, why aren't we seeing better results?

I am not an expert in interpreting these data and my review of these figures is cursory at best.  But I think a thorough understanding of what is going on here is important and that includes understanding why certain states consistently lead or trail.  The study suggests that the size of a state's population or the affluence of its constituents is not the reason.  California is a large state, Vermont is a small state, and both are leaders.  Massachusetts is considered a wealthy state while Arizona is considered less affluent - both are leaders.  According to UCP, Arizona and Vermont have consistently been ranked at #'s 1 and 2 since 2007.  I think it would be useful to understand why this is the case and bring some of those tricks to New York.

ICare4Autism's Annual International Autism Conference in NYC

Yesterday I attended ICare4Autism's Annual International Autism Conference held at the Albert Einstein College of Medicine at Yeshivah University in New York City.  The event, called "Autism: A Global Perspective," centered around a discussion about the latest medical and educational research and the process of finding the causes and treatment for Autism Spectrum Disorders.  The full-day event featured leaders in the field from around the world.  Some sessions focused on the bio-medical side discussing, for instance, research relating to metabolism and genetics issues affecting individuals with autism.  On the educational-behavioral side, sessions included: The Welsh Government's National ASD Strategy; Intervention Targeting Development of Socially Synchronous Engagement in Toddlers with ASD; and The Ecological Assessment of Executive Function in Autism.  The event was informative, enlightening, and, at times, inspiring. 

ICare4Autism is an organization dedicated to tackling the global autism crisis by convening a global community of researchers, educators, and advocates to catalyze breakthrough innovations in autism research, diagnosis, and clinical intervention.  Dr. Joshua Weinstein, the founder and president of ICare4Autism, has been an educator and administrator for more than four decades and is dedicated to helping children with special needs.  Currently Dr. Weinstein is in the process of establishing a global autism center in Jerusalem.  The center seeks to provide a meeting ground for researchers, educators, and advocates involved with this cause and to create opportunities for powerful collaborations for the detection and treatment of autism.  It will also offer a special education school program to meet the needs of Israeli children on the autism spectrum.  The research and education center is slated to open in 2014. 

Tuesday, July 5, 2011

Asperger's Teenager Shot Dead By Two Cops In Florida

The story of a young man with Asperger's, a form of autism, who was shot dead by cops in Florida last week is as confusing as it is sad. The mother of an 18-year-old man called the police for assistance responding to her son's menacing behavior. Suffering from depression, he was threatening to commit suicide with a knife in his hand. The mother hoped that the police would assist in taking him to a hospital and getting him proper medication. The police who responded went into the home and ended up shooting him with deadly force because of some perceived threat to their safety. Assuming that the cops were unable to approach him because of the knife, aren't they trained in other forms of restraint? And assuming that they absolutely had to shoot, aren't they trained in how to accomplish this without causing fatality? This is a hearbreaking tragedy for the family and a reprehensible and disgraceful intervention by the police department.

Friday, June 24, 2011

Gifted And Talented

A bill pending in the NYS Senate Committee on Education proposes better programs and services for "twice exceptional students" - those children who have the unique combination of being "gifted and talented" while at the same time being a child with special needs. 

For those interested, the text of the bill can be viewed at:

New Milestones In Testing Accommodations

Check out this interesting article describing what the future has in store for special needs students in the area of testing accommodations:

Thursday, June 23, 2011

Interesting Example Of The Interplay Between State And Federal Governments When It Comes To Special Education Funding

Although this Education Week blog post relates to South Carolina, it is an interesting example of the tension between state and federal governments when special education funding is involved.  States cannot decrease special education funding from year to year without a waiver from the U.S. Department of Education.  Over the last two years South Carolina has cut its special education funding by roughly $111 million and if it does not replace those funds, it will be penalized by losing that same amount of federal funding that it otherwise would have been entitled to.   

Full text available at:

Proposed Changes To New York Education Law

I received the following email yesterday regarding proposed changes to New York education law:


Albany is considering legislation RIGHT NOW that will make it harder for you to go to a hearing to enforce your rights or obtain additional academic support for your child.

Why should you be concerned? Two bills before the Senate (S5816 and S5758A) would:

Ø Reduce the amount of time you have to enforce your rights against your school district by cutting the statute of limitations to 180 days for parents who unilaterally place their children in nonpublic school and to one year for everyone else.

Ø Eliminate the right of parents who home school their children or who pay private school tuition to get related services for their child unless they tell the school district that they plan to do this by April 1 of the year before they want the services.

Ø Force parents who home school their children or pay for private school tuition to go through mandatory mediation before they could file a due process hearing.

Ø Allow school districts to cut Academic Intervention Services for students with IEPs.

Call your legislators (518-455-2800 for your State Senator and 518-455-4100 for your Assembly member) and Governor Cuomo (518-474-8390) IMMEDIATELY and let them know you oppose S5816 and S5758A for these reasons. Make it clear that none of the special education mandate relief provisions above should be included in any legislation or session-ending deal.

To read the full text of these bills, visit  Type in the bill number, click on the box at the top of the page that says "text," and then hit "search."  The proposal about reducing the statute of limitations from 2 years to a shorter period has been attempted before and has failed.  Mediation is intended to be an alternative to an impartial hearing, not a prerequisite.  The passage of either of these amendments would be an abrogation of the rights that parents currently possess.